12/22/2022
The advantages of arbitration as a means of conflict resolution for certain types of disputes are well known. For no other reason, its consolidation in the global scenario is unquestionable.
The recent research conducted by Prof. Selma Ferreira Lemes[1] reported that in the last decade there has been a significant increase in the number of arbitration proceedings filed before the main Brazilian arbitration chambers.
It is safe to assume that one of the main factors contributing to the success of the institute is its adaptability, which has not gone unnoticed during the COVID-19 pandemic, which, unlike the Judiciary, has quickly made the virtualization of procedures, so that hearings are now held in virtual format and the submission of hardcopies was suspended.
Once the barriers imposed by the pandemic were overcome, on 2022 the evolutions resulting from it remained and others arose as a reflection of the mutability of the institute.
An example of this is Resolution No. 80 edited by the Securities and Exchange Commission of Brazil (CVM), published in March of this year. The measure, which mitigated the confidentiality of arbitration proceedings involving corporate claims to give greater visibility to demands capable of affecting the rights of shareholders and investors in general, is in line with a universal movement to make confidentiality more flexible, which is very present in arbitration proceedings.
So much so that, in January 2019, the International Chamber of Commerce (“ICC”) innovated by releasing its policy on the publication of arbitral awards. In the Brazilian scenario, it was verified that there is also a predisposition for the publication of arbitral awards, according to a survey carried out by the Brazilian Arbitration Committee (“CBAr”) along with the Ipsos Institute.
Should also add the movements – both from arbitration players and the Judiciary – that have brought more legal security to the institute regarding frivolous attempts to annul arbitration awards.
The Judiciary, in most of the decisions handed down during this year, by making the awards handed down in arbitration proceedings and, by reflex, the institute itself, has shown that Brazil is an arbitration-friendly country.
Along the same lines, the new regulation of the Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (“CAM-CCBC”) brought important innovations to prevent late allegations of partiality of arbitrators, such as, for example, the rules contained in articles 9.5, 9.6 and 9.7, which have the purpose of preserving the validity of the constitution of the arbitral tribunal and preserve its full operation.
Despite its self-regulation, there are still those who, by legislative means, try to change the Arbitration Law, in blatant damage to the institute, such as the recent Bill of law no. 3293/2021, which it is believed will not stand.
Indeed, arbitration is not a static institute. However, any change must be made with caution and together with those working in the area. Likewise, to navigate these waters, it is necessary to be advised by specialists.
L.O. Baptista Advogados, which has a tradition in the practice of arbitration in Brazil, remains attentive to the metamorphosis of the institute, to ensure safe performance for its clients.
[1]http://www.selmalemes.adv.br/publicacoes.asp?linguagem=Portugu%EAs&secao=Publica%E7%F5es&subsecao=T%F3picos&acao=Consulta&especificacao=Artigos
